When entering a guilty plea in court, the lawyer or judge will usually ask a number of questions to determine if the accused knows their basic rights and possible consequences of entering the guilty plea. These questions are known as the plea inquiry and are set out in Section 606(1.1) of the Criminal Code.
606. (1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.
Conditions for accepting guilty plea
(1.1) A court may accept a plea of guilty only if it is satisfied that the accused
(a) is making the plea voluntarily; and
(i) that the plea is an admission of the essential elements of the offence,
(ii) the nature and consequences of the plea, and
(iii) that the court is not bound by any agreement made between the accused and the prosecutor.
Even in cases where the lawyer or judge does not conduct a plea inquiry, a guilty plea can be valid. In certain circumstances, an accused may wish to have their guilty plea withdrawn. This can happen in circumstances where the accused was misinformed about the consequences of a conviction, didn’t understand what they were agreeing to have done or have viable defence.
The court will consider many factors when determining whether to allow the accused to withdraw of a guilty plea.
The Canadian courts have created a test to determine the circumstances in which an accused may withdrawn a guilty pleas. There are a number of factors the court considers when determining whether to allow an accused to withdraw a guilty plea.
The court will examine how far though the court process the matter has proceeded. It is favorable for an accused to apply to have their guilty plea withdrawn the earlier the matter is in the process. If a guilty plea was recently entered it may be easier to withdrawn than if the accused has already been sentenced.
Courts also consider if the accused understood the nature and consequences of their guilty plea. For example, an accused may not have known that a guilty plea to the offence mischief to a motor vehicle results in a 12 month driver licence suspension under the Highway Traffic Act; an assault conviction to a person under the age of 18 will result being placed on the Child Abuse Registry; or, a sexual assault conviction result on being placed on the National Sexual Offender Registry. An accused may not have understood that there are minimum sentences or of certain mandatory ancillary orders.
The court will review the what was said in court during the court proceeding in which the plea was entered. The judge will examine if the plea inquiry was done fully and correctly. Did the accused in entering their guilty plea do so without equivocation or hesitation? Did the accused seem to understand what was being asked?
Another factor the courts will consider is whether the accused has a viable defence. In these cases,the accused person has the burden of proving a viable defence, for example self defence or duress.
The ultimate question is whether it is in the interest of justice to allow the accused to withdraw a guilty plea.
The judge consider all available information, including the above mentioned factors, when determining the issues. Applications to withdraw a guilty plea are complex and difficult. Before deciding to enter a guilty plea in court it is best to speak with a lawyer in order to be advised of all your options. Please do not hesitate to contact me for assistance.